Flaws in the Justice Department’s lawsuit against Republican Virginia Governor Glenn Youngkin’s effort to ensure non-citizens don’t vote in November’s elections are detailed in a memo from the governor’s counsel obtained by CNSNews.
On Friday, the Justice Department (DOJ) filed a lawsuit against the Commonwealth of Virginia, the Virginia State Board of Elections, and Commissioner of Elections Commissioner Susan Beals petitioning a U.S. District Court to stop Virginia from continuing its practice of removing non-citizens from its voter rolls.
The Justice Department is basing its complaint on a stipulation in Section 8 of the National Voter Registration Act of 1993, which reads:
“A State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.”
The heart of the issue is the law’s prohibition of “systematically” removing non-citizens from voter rolls.
DOJ contends that Virginia’s Commissioner of the Department of Elections (ELECT), at the direction of an executive order issued by Governor Youngkin 90 days before Election Day, is conducting a “systematic” cleansing of voter rolls.
But, a memorandum by former Virginia Attorney General and current Counselor to Gov. Youngkin Richard Cullen obtained by CNSNews explains that Virginia’s process employs individual, case-by-case reviews of potential non-voters – based on each individual’s own admission of non-citizenship or refusal to assert citizenship status:
“Federal law does not prohibit the removal of noncitizens from the voting rolls. The 90-day ‘quiet period’ under the National Voter Registration Act (NVRA) is not relevant to this process since Virginia conducts an individualized—not systematic—review per Virginia law in order to correct registration records.”
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“The process by which ELECT maintains the voting rolls regarding noncitizens is mandated by law and is not subject to the Governor’s discretion. This process starts when an individual themselves indicates they are a noncitizen during a DMV transaction.”
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“[T]his entire process begins with an individual themselves indicating they are a noncitizen during a DMV transaction.”
What’s more, if the person hasn’t affirmed citizenship, the state sends a personal correspondence directly to that individual warning that he or she has 14 days to affirm his or her citizenship status, Cullen’s memo explains.
And, even if the person fails to respond within the two-week period, another personal correspondence is sent, by both mail and email (if provided), explaining that he or she has been removed from the voter roll and can contact ELECT and declare citizenship in order to be reinstated.
The DOJ objects to Governor Youngkin’s August 7, 2024 executive order, but Virginia would be bound by state law to employ its voter integrity process even without it, Cullen writes:
“This process is explicitly prescribed in Va. Code §§ 24.2-410.1, 24.2-427(B), and 24.2- 427(C), which require the Department of Motor Vehicles (DMV) to provide ELECT with a list of DMV customers who have indicated they are a noncitizen—data which is now provided to ELECT daily. See Va. Code § 24.2-410.1(A).”
Counselor Cullen also notes that the state’s voter registration law was signed into effect in 2006 by then-Governor Tim Kaine, a Democrat. No governor – Democrat or Republican – has objected to it in the nearly two decades it has been on the books. Some have even employed it within 90 days of an election.
“This process has been in place since 2016. We have had recent governors Terry McAuliffe and Ralph Northam use this exact same process within the 90-day period because it is individualized,” Gov. Youngkin said in a recent interview with CNN. “An individual starts the process by self-identifying as a non-citizen. And, therefore, as governor, I have an obligation, no discretion, to then run the process,” Gov. Youngkin said.
In its lawsuit, the DOJ also argues that eligible voters placed on the path to removal “may be deterred from voting or unable to participate in the election on the same terms that they would have but for the Commonwealth’s error.”
But again, DOJ’s contention appears to be in error, since eligible voters can still cast their ballots on Election Day, even if they’ve previously been incorrectly identified as ineligible, as long as they affirm their citizenship before voting, the memo states:
“And as a further failsafe, Virginia offers same day voting registration in the event someone incorrectly indicated they were a noncitizen during their DMV transaction. See Va. Code § 24.2-420.1.”
In a press release responding to the DOJ’s lawsuit, Gov. Youngkin has vowed to defend Virginia in court in order to ensure both compliance with the law and fair elections in his state:
“With the support of our Attorney General, we will defend these commonsense steps, that we are legally required to take, with every resource available to us.
“Virginia’s election will be secure and fair, and I will not stand idly by as this politically motivated action tries to interfere in our elections, period.”